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RESOLUTIONS - 01012005 - 2005-554
Recorded at tate request of: Contra Costa County Board of Supervisors Return to: Public Works,Department Engineering Services Division THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY,CALIFORNIA Adopted this Resolution on September 13, 2005 by the following vote: AYES: Gioia,Piepho,DeSaulaier,Glover and Uitkema NOES: None ABSENT: None ABSTAIN: None till ION 1 0.2.66- SUBJECT: Accepting Offer of Dedication for Roadway Purposes,`for DP 02-03045, being developed by''M Central LLC, North Richmond area. (District I) ITIS BY THE BOARD RESOLVED that the following instrument is hereby ACCEPTED FOR RECORDING ONLY: INSTRUMENT REFERENCE GRANTOR AREA DISTRICT Offer of Dedication for DP 02-03045 M Central LLC North I Roadway Purposes Richmond APN: 408-190-044 LS:nn I hereby certify that this is a true and correct copy of an G:\GrpData\EttgSvc\Bo\2005\09-13\DP 02-02045$C1-30.doc action taken and entered on the minutes of the Board of Originator: Public Works(ES) Contact: S.Gospodchtkov(313-2316) Supervisors on the date'shown. Recording to be completed by COB cc: Current Planning,Community Development Depatuvent M Central LLC Attn:Marvin Mendelsohn 385 Pittsburg Ave. ATTESTED: Acerc, W, Richmond,CA 94901 JOHN SWEETEN, Clerk of the Board of Supervisors and County Administrator By 7/ ,Deputy RESOLUTION NO.200511 Recorder!atthe request of. TRACOSTACO Recorder Off ice Boards ofSupervisorsSTEPHEN L. IIIN Cleat-Rwr r e Board of supervisors DOS 200 ' 0351101-00 Return t�. .. .« Public works Department Engineering Services Division W�t+drtltitFRE $0.0 SEP 14, 2Ql�#'� 1°�'. " -.37 y �r0,0ep� gyp} r� r��+ Area: NorthRichrnond Ttl Pd $I,M Itt-ON28 29� Road: Central Street Co.Road No.: 0565Y Development No.. DP 02-3045 APN': 408-190-044 OFFER OF DEDICAMN-,ROAD PURPOSES A Le-r, v-(-A LL C the undersigned,being the present title owner of record of the herein described parcel of land, do hereby make an irrevocable offer of dedication to Contra Costa County; apolitical subdivision of the Mate of California and its successors or assigns, for street, highway landscaping and other public purposes, including maintenance thereof,the fee title to real property situated in the County of Contra Costa, State of California,as described in Exhibit "A" (written description)and shown on Exhibit "B" (plat map) attached hereto. It is understood and agreed that Contra Costa Countyand its successors or assigns shall incur no liability with respect to such offer of dedication, and shall not assume ,any responsibility for the offered parcel of land or any improvements thereon or therein,until such offer has been accepted by appropriate action of the Board of Supervisors, or of the local'governing bodies of its successors or assigns. The provisions hereof shall inure to the benefit of Contra Costa County and it successors or assigns and will be binding upon the title owner of record and that owner's heirs, successors or assigns. The undersigned executed this instrument on f 1 (Due) (!lune of owner w shown ta title repro) (Signature) (Prw Nurse& ry M�vIN M�1DI�{ QL-IiN (Prim Nurse&Tnk} (See attached notary) M.In ,rns fii:tGspDSM\EngSwc 14ude.*rojectstDF 3045-021€F.6 5.26 04.doc Approved by Cowry Counsel-4/29103 CALIFORNIA ALL.-PURPOSE ACKNOWLEDGMENT State of California Ss. County of o 1 On before me, Date: �' Narrsftand'nao#'' r fa.g.,.".tan Doe,NTFUbliq personally appeared l Name(e)of Signer(s) ❑personally known to me „proved to; me on the basis of satisfactory evidence to be the person whose name(r is LISA A.DAiZIEL subscribed to the with' instrument and aCommission# 1377110 acknowledged to me that sloa executed Notary Public - California the same in i�y�l A&Cr uthorized Contra Costa County capacity(it , and that by *1$Krr ) mycomm.ExpliesSep28,M signatureo on the instrument the personal or the entity upon behalf of which the person” acted,executed the instrument. hS rp�r hand'and (ficial s Srgnat-.a of o1ery:.P96llc OPTIONAL Though the inf ation below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Att ed Document Title or Type of Document: Document Date: Number of, es: Signer(s)Other Than Named Above: Capacity(ies)Claimed'by Signer Signer's Name: ❑ Individual Top of thumb Mere ❑ Corporate Officer—Titl ❑ Partner-❑Limite General ❑ Attorney-in-Fac © Trustee © Guardian r Conservator ❑ Other: Signer is Representing: i, 0 IM National Notary Association-MO De Soto Ave.,P.O.Box 2402 Chatsworth CA 91313.2402-www.oadonakrotary.org Prod.No.5907 Reorder Cast Toit-Free 14W.67UB27 EXHIBIT"A" CENTRAL STREET AREA DEDICATED TO CONTRA COSTA COUNTY FOR ROADWAY PURPOSES REAL PROPERTY IN THE COUNTY OF CONTRA.COSTA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEING A'PORTION OF THE PROPERTY GRANTED TO M CENTRAL LLC,RECORDED SEPTEMBER 28,2001,AT RECORDERS SERIES NO.2001-291946,DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WESTERLY LINE OF CENTRAL`STREET, SAID POINT BEARS SOUTH 010 20'39" WEST,43.36 FEET FROM THE INTERSECTION OF THE NORTHERLY LINE OF BROOKSIDE DRIVE AND THE WESTERLY LINE OF CENTRAL STREET. THENCE FROM THE POINT OF BEGINNING,ALONG THE, WESTERLY LINE OF CENTRAL STREET, SOUTH 01-20'39- WEST, 191.21 FEET; THENCE ALONG THE SOUTHERLY LINE OF SERIES.NO.2001-291946,NORTH 88050'18"WEST, 10.00 FEET; THENCE PARALLEL TO THE WESTERLY LINE CENTRAL STREET,NORTH 01 020'39" EAST, 191.24 FEET, TO THE NORTHERLY LINE OF SERIES NO.2001-291946; THENCE SOUTH 88°40'32" EAST, 10 FEET TO POINT OF BEGINNING. b ,Cpt . T Cid JK�6f b R BE T'C OCxEY L. .3050E BASIS OF BEARINGS: BEARINGS ARE BASED ON THEE��1$1 t 1118)l CALIFORNIA COORDINATE SYSTEM ZONE til (NAD27). THE BEARING N 8e° 50'13' W BETWEEN THE FOUND 40' 2 IRON PIPE AND THE STANDARD CONTRA COSTA � oCZ COUNTY STREET MONUMENT ON PITTSBURG AVENUE t- .d AS SHOWN ON THE RECORD OF SURVEY FILED APRIL w w�, 14, 1992,IN B0OK 100 OF LICENSED SURVEYORS'MAPS a A PAGE'37 WAS USED AS THE BA SIS OF BEARINGS (86(7 PER t M 7) FOR THIS SURVEY, 659:86' —. U7 0 cm E.B. U. � r° N88°4''38"W 900.00,CQ "i Pri 17258 O.R.838 BROOKS'IDE DR. S88040'32"E 10OL39`(T) 10, P.O.B. w PLAT OF CENTRAL W STREET DEDICATION W M' CENTRAS LLC PREPARED BY: SERIES N O.2 0 01—2 919 4 6 �N c~n ROBERT C. TRO CKEY E+ ENGINEER �, , LAND PLANNER, SURVEYOR, 5406 HEAVENLY RIDGE LN., EL' SOBRANfE, w CA. 94803-2667 * (510) 232-6737 E-MAIL trockey®infioniine.net v rf, a o F- -t d W U AREA DEDICATED TO C.C.Co. FOR ROADWAY PURPOSES 07119105 ROBERT . TR S.3050 EX RES 06134105 LAND SC. � to, LS 305(} N88050'18"W 1001.29'(T) Exp. 06/30/06 �Q < IAIACC CORP, el + l OF C P� 1836 OR 924 , 1 0 90U'011'00" UR EY l O. 91 96 ER 22.86 Z 009'0 37ER ~1 1 C7 a4�'� 0 20 40 100 w _ cp l {7.14' 10 30 50_ L1 BASIS OF BEARINGS' U � SCALE. 1 - 40 746.94'MEAS. c>�' �� (746.86' GRID) PITTSBURG AVE. N ��\o. (D N88°5013"W N68°5fl't3"W 1095.{S' � RESET'RR SPIKE STAMPED LS 3050 PER CONTRA COSTA COUNTY FILE NO. PA 0572B-72 DATED (1095.08' GRID) JANUARY t972 AND SURVEY BY DONALD KISTER FOUND 2"IRON PIPE L.SJ7{2 FOUND STD. MONUMENT L.S. 1712 DATED 8113162. SURVEY NO. 9196. DWG N0. K-2455 ON FILE WITH KSR INC. PER C. C. CO. FILE NO. PA PER C. C. CO. FILE NO. PA 05726-72 a 100`L.S.M. 37.� 05728-72 &100 L.S.M. 37. A.Rhl. 408-190-044 291946 Basic Operating Agreement M Central, LLC In accordance with the Beverly-Killea Limited Liability Company Act and subject to the Articles of Organization, to be filed with the Secretary of State of California, the members of West Ohio Avenge Land,Company, listed on the signature page, make the following agreement as of February 22 2000, regarding the conduct of the business and affairs of M Central, a'California limited liability company ("Company"): ARTICLE 1. DEFINITION OF TERMS 1.011. When used in this;agreement, the following terms have the meanings set forth here: (a) "Act" means California's Beverly-Killea Limited LiabilityCompany Act, as set forth in Corporations Code Title 2.5. (b) "Agreement" means this operating agreement, as originally executed and as amended from time to time. (c) "Articles" means the Articles of Organization for the Company filed' under Corp. Code §17050, including all amendments thereto or restatements thereof'. (d) "Availablecash" of the Company means all cash funds of the Company on hand from time to time (other than cash funds obtained as contributions to the capital of the Company by the members and cash funds obtained from loans to the Company), after (1) payment of all operating expenses of the Company as of such time, (2) provision for payment of al outstanding and unpaid current obligations of the Company as of such time, and (3)' provision for a working capital,.reserve, as defined below. (e) "Bankrupt" or "bankruptcy" means, with respect to any person, being the subject of any order for relief under Title 11 of the United States Code, or any successor statute. (f) "Capital account" means the individual) accounts established and maintained pursuant to Paragraph 3.04. (g) "Capital contribution" means the total value of cash and agreed fair market' value of property contributed and agreed to be contributed' to the Company by each member, as shown in Exhibit A, as the same may be amended from time to time. M central Basic Operating Agreement Page 1 of 18 (h) "Code" means the Internal Revenue Code of 1986, as amended. All references in this Agreement to sections of the Code include any corresponding provision or provisions of succeeding law. (i) "Company" means M Central, a California limited liability company. (j) "Entity" means any association, corporation, general partnership, limited partnership, limited liability company, joint stock association, joint venture, firm, trust, business trust, cooperative, and foreign association of like structure. (k) "Interest" in the Company means the entire ownership interest of a Member in the Company at any particular time, including the right of the member to any and all benefits to which a Member may be entitled as provided in this Agreement and under the Act,"together with the obligations of the member to comply with all of the terms and provisions of this Agreement. (1) "Manager" means the person designated by the Members as the Chief Executive Officer of the company, who is initially Marvin Mendelsohn: (m)"Member" means a person who: (1) Has been admitted to the Company as a Member in accordance with the Articles of !Organization or Operating Agreement, or an assignee of an interest in the Company who has become a Member pursuant to Corp. Code §17303 (2) Has not resigned, withdrawn, or been expelled as a Member or, if other than an individual, been dissolved. (n) "Percentage interest" of a Member means the percentage of the member set forth opposite the name of the Member in Exhibit A attached to this Agreement, as the percentage may;be adjusted from time to time pursuant to the terms of this Agreement. (o) "Principal office" means the office of the agent of this Company as shown in its Articles. (p) "Pro Rata Part" means the proportion that a percentage interest of a Member bears to the aggregate interest:in the Company of all Members. (q) "Share" refers to an interest in the Company. Whenever reference is made to "percentage interest," a share may be converted into the same by dividing a Member's number of shares by the total of all shares outstanding, M Central Banc operating Agreement Page 2 of 1'8 29294€; 4 (r) "Substitute Member" means any individual or entity that is admitted into membership on the written consent of all Members in accordance with Paragraph 3.11. (s) "Tax Matters Member" means the member chosen pursuant to Internal °Revenue Code §6231(aX7)to deal with the Internal Revenue Service on tax matters. ARTICLE 2. ORGANIZATION OF COMPANY Formation of Company 2.01. The Members have formed a limited liability company under the Actby properly executing and filing the Articles and executing this Agreement. The rights, duties, and liabilities of the Members and the Managers are determined pursuant to the Act; the Articles, and this Agreement. Company Name 2.02. The name of the Company is M Central. The Company will transact business under that name. However, the Company may conduct business under another name it the Members think it advisable, provided that the Members comply with the Act and any other applicable laws, file fictitious name certificates and the like, and file any necessary amendments. Company Purpose 2.03. The purpose of the Company is to purchase, sell, lease and develop real property. Duration of Company and Agreement 2.04. The duration of the Company and this Agreement is until;.February 22, 2020, as provided in the Articles, unless the Company is dissolved earlier pursuant to Article 25. ARTICLE 3. MEMBERS AND MEMBERSHIP INTERESTS Dames, Addresses, and Initial Capital Contributions of Members 3.01(x). Members, their respective addresses, their initial capital contributions to the Company, and'their>respective percentage interests in the Company are set forth on Exhibit A,:attached to this Agreement and made a part of it. Each Member M Central Basic Operating)Agreement Page 3 of 18 agrees to make the initial contribution set out in Exhibit A"in timefor<escrow to close on the acquisition of the West Ohio Avenue realproperty. (b). If a Member fails to make an initial Capital'Contribution required::under'section 3.01(a)(a Defaulting Member), the Manager shall notify each other Member (a Nondefaulting Member) in writing of the total amount of Defaulting Member Capital Contributions not made(the Capital Shortfall) and shall specify a number of days' within which each Nondefaulting Member may make an additional Capital Contribution, which shall not be less than an amount'bearing the same ratio to the: amount of Additional Capital Shortfall as the Nondefaulting Member's Capital Account balance bears to the total Capital Accounts of all Nondefaulting Members. If the total amount of Additional Capital Shortfall is not so contributed, the Manager may use any reasonable`method to provide Members the opportunity to make additional Capital Contributions, until the Additional Capital Shortfall is as fully' contributed as possible. Following the Nondefaulting Members' making of such additional Capital Contributions, each Member's Percentage Interest shall be adjusted so that the proportion of the percentage share of the defaulting member equal to the proportion of the shortfall to the defaulting member's total initial capital contribution is distributed among the non-defaulting members in proportion to their'additional'contributions. Future Contributions 3.02(a). A majority of the Members;,may determine from time to time that Capital contributions in addition to the Members' initial Capital Contributions are needed to enable the Company to conduct its business. an making such a'determination, the Manager shall give notice to all Members in writing at least 90 clays before the date' on which such additional Capital Contribution is due. The Notice shall set forth the amount of additional Capital Contributions needed, the purpose for which it is needed', and the date by which the Members shall contribute. Each Member shall be required to make an additional Capital Contribution in an amount that bears the same proportion to the total additional Capital Contribution that such Member's Capital Account balance bears to the total Capital Account balances of all Members. No Member may voluntarily make any additional Capital Contribution. (b). If a Member fails to make an additional Capital Contribution required under section 3.02(a)within 90 days after notice is given by the Manager (a Defaulting Member), the Manager shall notify each other Member (a Nondefaulting Member) in writing',of the total amount of Defaulting Member Capital Contributions not made (the Additional Capital Shortfall) and shall specify a number of days within which each Nondefaulting Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the 'Nondefaulting Member's Capital Account balance bears to m Central Basic Operating Agreement Page 4 of 18 Z-91946 the total Capital Accounts of all Nondefaulting Members. If the total amount of ; Additional Capital Shortfall is not so contributed, the Manager may use any reasonable method to provide Members the opportunity to make additional Capital Contributions, until the Additional Capital Shortfall is as fully contributed as possible. Following the Nondefaulting Members` making of such additional Capital Contributions, each Member's Percentage Interest shall be adjusted so that the proportion of the percentage share of the defaulting member equal to the proportion of the shortfall to the defaulting member's total initial capital contribution is distributed among the non-defaulting members in proportion to their additional contributions. M Centra Basic operating,Agreement Page 5 of 18 2'-141946 'i Member Loans or Services 3.033. Loans or services by any Member to the Company may not be considered to be contributions to the capital of the Company. Any compensation which the Company pays to aMember for services, and any payment made"by the Company to'a Member on that Member's loan to the Company, shall not be treated as payment made to that Member acting in his, her, or its capacity as a Member under Internal'Revenue Cade Section 7017. Capital and Capital Accounts 3.04. (a) The initial Capital Contribution of each Member is as set forth in Exhibit A. No interest may be paid on any Capital Contribution. (b) The Company will establish and maintain individual Capital Accounts for each Member pursuant to Treasury'Regulation Section 1.704-1(b)(2)( v)• (c) No Member has the right to withdraw his or her capital contribution or to demand and receive property of the Company or any distribution in return for his or her Capital Contribution, except as may be specifically provided in this Agreement or required by law.' No Member may receive out of Company property any part of his, her, or its capital contribution until (1) all liabilities of the Company, except liabilities to Members on account of their loans, have been paid or sufficient Company property remains to pay them, and (2) all Members consent unless the return of the contribution to capital is rightfully demanded as provided in the Act. (d) Subject to the provisions of subparagraph (c)of this paragraph, a Member may rightfully demand the return of his or her or its Capital-Contribution (1) after the Company has been dissolved and wound up pursuant to Article 21 of this Agreement, or(2) as may otherwise be provided in the Act. A member may demand and receive only cash' in return for the Member's Capital Contribution. Admission of Additional Members: 3.05. The Members may admit to the Company additional' members to participate in the profits, losses, available cash flow, and ownership of the assets of the Company on such terms as are determined by all of the Members. Admission of: any additional Member requires the written consent of all members then having any interest in the Company. Any additional Members are allocated gain,''loss,`income, or expense by the method providedin this Agreement. M Central Basic Operating Agreement Page 6 of]S if Limitation on Liability 3.06. No Member is liable under a judgment, decree, or order of the court, or in any other manner, for a debt, obligation, or liability of the Company, except as provided by law. No Member is required to loan any funds to the Company. No Individual Authority 3.07. Unlessexpressly provided in this Agreement, no Member, acting alone, has any authority to act for, or to undertake or assume, any obligation, debt, or responsibility on behalf of, any other Member of the Company. No Member Responsible for tither Member's Commitment 3.08. In the event that a Member (or a Member's shareholders, partners, members, owners, or affiliates) has incurred any indebtedness or obligation before the date of this Agreement that relates to or otherwise affects the Company, neither the Company nor any other Member has any liability or responsibility with respect to the indebtedness or obligation unless the indebtedness or obligation is assumed by the Company pursuant to a'written instrument signed by all Members. Furthermore, 'neither the Company nor any Member is responsible or liable for any indebtedness or obligation that is subsequently incurred by any other Member (or a Member's shareholder, partners, members, owners, or affiliates). In the event that a Member (or a Members' shareholders, partners, members, owners, or affiliates; collectively called the "liable Member"), whether before or after the date of this Agreement, incurs(or has incurred) any debt or obligation for which neither the Company nor any of the other Members is to have any responsibility or liability, the liable Member must indemnify and hold harmless the Company and the other Members from any liability or'obligation they may incur in respect of the debt or obligation. Transfer and Assignment of Membership'Interests 3.09. No Member may assign, convey, sell, encumber, or in any way alienate all or any part of his or her interest in the Company as a Member without the prior written consent of all the other Members, which consent may be given or withheld, conditioned or delayed (as allowed by this Agreement or the Act), as the remaining Members may determine in their sole discretion. Transfers in violation of this section are effective only to the extent set forth in Subparagraph 3.12(b), 'below. Further Restrictions on Membership Transfers M Centraf, Basic Operating Agreement Page 7 of 18 3.10. No Member may assign, convey, sell, encumber, or in any way alienate all or any partof his or her interest in the Company(1) without registration under applicable federal and state securities laws, or unless he or she delivers an opinion of counsel satisfactory to the Company that registration under those laws is not required; or (2) if the interest to be sold or exchanged would result in the tax termination of the Company under Internal Revenue Code Section 708. Substitute Members 3.11. A'transferee may become a Substitute Member'if(1) the requirements of Subsections 3.09 and 3.10, above, are met; (2)the person executes an instrument satisfactory to the remaining Members accepting and adopting the terms and provisions of this Agreement; and (3)the person pays all reasonable expenses in connection with his or her admission as>a remaining Member. Effect of Transfer 3.12. (a) Any permitted transfer of all or any portion of a Member's interest in the company takes effect on the first day of the month following receipt by the Members of written notice of transfer. Any transferee of an interest in the company' takes subject to the restrictions on transfer imposed by this Agreement. (b) On a transfer of'a Member's interest in the Company in violation of this Agreement, the transferee has no right to participate in the management of the business and affairs of the Company or to become a Member, but the transferee is entitled only to receive the share of profits or other compensation by way of income and the return of contributions to which the transferor of the interest in the Company would otherwise be entitled. The transferring Member, also loses:his, her or its right to participate'in the management of the business and affairs of the Company, or, if the Member transfers less than all of the Member's interest, the transferring Member's voting power is reduced to the proportion>the Member's remaining interest bears to the total of all interests held by Members. Effect of Death, Disability, or Loss of Control 3.13. If an individual Member dies,.; becomes permanently disabled, is incarcerated, or loses control over the Member's financial affairs because, for example, of appointment of a conservator or Bankruptcy Trustee, or if a Member that is a business entity is dissolved or a controlling interest therein changes ownership or control, or if a Member's interest is involuntarily transferred because, for example, of a division of property pursuant to a dissolution of marriage or execution of a judgment, then the remaining Members may, at their sole discretion, M Central Basic Operating Agreement Page a of 18 1.91946 remove the Member's right to participate in the management of the business and affairs of the Company. A Member is permanently disabled when the Member has been unable to actively participate in the management of the business and affairs of the Company for more than twelve consecutive months, or when it is reasonably anticipated that the Member will be unable to participate in the management of the business and affairs of the Company for more than twelve months. ARTICLE 4. POWER TO AMEN© AGREEMENT 4.01. The power to adopt, alter, amend, or repeal this Agreement is vested entirely in the Members of the Company. The vote required to amend any portion of this Agreement is the vote required to act under the provision being amended. ARTICLE 5. MANAGEMENT RIGHTS IN MEMBERS 5.01. Exceptas otherwise provided in this Agreement or as otherwise''agreed, management of the Company is vested in the Members in proportion to their percentage interests. ARTICLE 6. EXERCISE OF COMPANY POWERS` 6.01. Except as otherwise provided in this Agreement, all powers of the Company are exercised by or under the authority of the Members and the business and affairs of the Company are managed under the direction of the Members. ARTICLE 7. MEMBERS TO MAKE JOINT DECISIONS 7.01. No act may be taken, money expended, decision made, or obligation incurred', by the Company except by the consent of three-fourths of the Members' interests with respect to a matter within the scope of any of the major decisions enumerated below. Those decisions include: (a) The sale of all or substantially all assets of the Company; (b) A mortgage or encumbrance on all or substantially all assets of the Company; (c) Any matter that could result in a change in the amount or character of the Company's contributions to capital; (d) A change in the character of the business of the Company; (e) Borrowing of money; M Central Basic Operating Agreement Page g of is �f 201946 (f) Commission of an act that would make it impossible for the Company to carry on its ordinary business; (g) Commission of an act that would contravene this Agreement; or (h) Undertaking a new development project. ARTICLE 8. ALTERATION OF MANAGEMENT RESPONSIBILITIES 8.01. Management responsibilities may not be altered except by the action of a majority'in interest of all Members at a meeting called on written notice expressly describing alteration of management responsibilities as one of the purposes of the meeting. ARTICLE 9. MANAGING MEMBER COMPENSATION 9.01. Members may receive compensation as determined by all Members for services'provided in the management of the Company: ARTICLE 10. REIMBURSEMENT OF EXPENSES 10.01. Each Member is entitled to reimbursement from the Company of all expenses of the Company reasonably incurred and paid by the Member on behalf of the Company. ARTICLE 11. POWERS OF MANAGERS 11.01. Except as otherwise expressly provided, all necessary powers to carry out the purposes,':business, and objectives of the Company, including the right to enter into and carry out contracts of all kinds; to employ employees, agents, consultants, and advisors on behalf of the Company; to lend or borrow money and to issue evidences of indebtedness; to bring and defend actions in law or at equity; to pay out Company funds, and to buy, own, manage, sell, lease, mortgage, pledge, or otherwise acquire or dispose of Company ',property, may be exercised by the Manager. ARTICLE 12. COMPANY BOOKS AND RECORD'S 12.01. The Members may employ a competent person to be responsible for authenticating the records of the Company, including keeping correct and complete books of account that show accurately at all times the financial condition of the Company; safeguarding all funds, notes, securities, and other valuables that may M Central Basic operating Agreement Page 10 of IS from time to time came into possession of the Company, and depositing all funds of the Company with such depositories as the Members designate. The employee may have other duties that the Members from time to time jointly prescribe, but under no circumstances does the employee have any of the rights, powers, responsibilities, or duties of a Member of the Company. Any person responsible for the above-described duties may be terminated at any time by the Members, and the Members may restrict the duties and/or authority of the person 'responsible for these duties at any time: ARTICLE 13. QUORUM 13.01. At all meetings of the Members, all Members must be present to constitute a quorum for transaction of business. ARTICLE 14 ACTIONS BY MEMBERS AND VOTING RIGHTS Votes Required to Act 14.01. Except as otherwise provided in this Agreement, an act of the Members of record is effective if the majority of Members` votes adapt the act at a meeting at which a quorum of Members is present. The voting rights of the Members are to be distributed in proportion to each Member's contribution to capital. Actions of Tax Matters Member 14.02, The Tax Matters Member of the Company, chosen pursuant to Internal Revenue Code Section 6231(x)(7), is Marvin Mendelsohn, who has the same authority as granted by the Internal Revenue Code to a tax matters partner. ARTICLE 15. ACTION BY CONSENT WITHOUT MEETING' 15.01. Any action permitted to be taken by the Members may be taken without a meeting if all Members individually or collectively consent by signing;a written approval of the action. Any action by written consent shall have the same force and effect as a unanimous vote of the Members. ARTICLE 16. RECORD DATE 16.01. Only persons whose names are listed as members'in the official records of the Company 10 days before any meeting of the Members are entitled to notice of or to vote at that meeting. M Central Basic operating;Agreement Page 11 of 18 �I ARTICLE 17. VOTE BY PROXY 17.01. Members may vote either in person or by proxy. Proxies must be executed in writing by the Members. A telegram, cablegram, or similar transmission by the member or a photographic, photostatic, facsimile, or 'similar reproduction of a writing executed by a Member is deemed an execution in writing for purposes of:. this Agreement. ARTICLE 18. ALLOCATIONS: DISTRIBUTIONS AND INTERESTS Allocation of Net Income, Net Loss, or Capital Gains 18.01. (a) Except as may be expressly provided otherwise in this Article 20, and subject to the provisions of Internal Revenue Code Section 704(c), the net income, net loss, or capital gains of the Company for each fiscal year of the Company is allocated to the Members, first, until the Members' capital contributions have been repaid in full without interest, in proportion to their capital'contributions, and thereafter pro rata in accordance with their percentage interests in the Company. (b); If a Member, on formation of the Company or at any time thereafter, contributes property with an adjusted income tax basis different from the fair market value at which the property is accepted and credited to that Member's capital account, then solely for income tax purposes and the determination of each Member's distributive share of the net Company profits and losses, any depreciation, depletion, gain, or loss with respect to that property shall, pursuant to Internal Revenue Code Section' 7O4(c) of 1986 and Treasury Regulation Section 1.704-3 , be allocated according to the traditional method with remedial allocations. Distribution of Available Cash' 18.02. Periodically, but not less frequently than at the end of each calendar quarter,,the available cash of the Company, if any, must be distributed to the Members, pro rata in accordance with their percentage interests. For any calendar quarter, available cash need not be distributed to the extent that the cash is required for a reasonable working capital reserve for the Company; the amount of the reasonable working capital;reserve is to be determined by the Manager. Allocation of Income and Loss and Distributions in Respect of Interests Transferred 18.03. (a) If any interest in the company is transferred, or is increased or decreased by reason of the admission of a new 'Member or otherwise, during any fiscal year of the Company, each item of income, gain, loss, deduction, or credit of the Company for the fiscal year must be assigned pro rata to each day' in the M Central Seem Operating Agreement Page 12 of 18 1� particular period of the fiscal year to-which the item is attributable (that is the day on or during which it is accrued or otherwise incurred). The amount of each item so assigned to any day shalt, if the Members' capital, contributions have not been fully repaid, be allocated to the Member based on his or her capital contribution in the Company at the close of the day or, if the members' capital contributions have been fully repaid, be allocated to the Member based on his or her percentage interest in the Company at the close of the day. For the purpose of accounting convenience and simplicity, the Company may treat a transfer of, or an increase or decrease in, an interest in the Company that occurs at any time during a semimonthly;period (commencing with the semimonthly period including the date of this Agreement) as having been consummated on the first day of the semimonthly period, regardless of when during the semimonthly period the transfer, increase, or decrease actually occurs(that is, sales and dispositions made during the first 15 clays of any month are deemed to have been made,.on the 16th day of the month).' (b) Distributions of the Company assets in respect of any interest in the Company shall be made only to the Members who, according to the books and records of the Company, are holders of record of the interests in respect of which the distributions are made on the actual date of distribution. Neither the Company nor any Member incurs any liability for making distributions in accordance with the provisions of the preceding sentence, whether or not the Company or Member has knowledge or notice of any transfer or purported transfer of ownership of interest in the Company that has not been approved by unanimous vote of the Members. Notwithstanding any provision above to the contrary, gain or loss of the Company realized in connection with a sale or other disposition of any of the assets of the'Company roust be allocated solely to the parties owning interests in the Company as of the date the sale or other disposition occurs. ARTICLE 19`. INDEMNIFICATION OF MEMBERS AND MEMBERS' FIDUCIARY DUTIES 19.01. The Company will indemnify Members for any act taken in the capacity of a Member, other than acts that involve a breach of fiduciary duty. The standard of the fiduciary duty a Member owes to the Company and to its members are those of a partner to a partnership and to the partners of the partnership. A Member's' standard of conduct owed to the Company and other Members is to act in the highest good faith to the Members, and a Member may not seek'to obtain an advantage in the Company affairs by the slightest misconduct, misrepresentation, concealment, threat, or adverse pressure of any kind'. ARTICLE 20. COMPANY RECORDS AND REPORTS M Central Basic Operating Agreement Page 13 of 18 i Required Books and Records 20.01. The Company shall keep the following books and records>in compliance with Corp. Code § 17058 (a) A current list setting forth, in alphabetical order, the full name and last known business or residence address of each Member and of each holder of an economic interest in the Company, together with the contribution and the share in profits and losses of each Member and holder of an economic interest. (b) A copy of the Company's articles`.of-organization and all amendments thereto, together with any powers of attorney pursuant to which the articles of organization or any amendments thereto were executed, (c) Copies of the Company's federal,;state, and local income tax or information returns and reports, if any, for the six most recent taxable years. (d) A copy of this Agreement, and any amendments thereto, together with any powers of attorney pursuant to which any written operating' agreement or any amendments thereto were executed, (e) Copies of the Company's financial statements, if any, for the six most recent fiscal years. (f)'Accurate books and records of the Company's internal affairs for at least the current and past four fiscal years. Records and:Accounting; Fiscal Year 20.02 The books and records of the Company must be kept, and the financial position and the results of its operations recorded, in accordance with the accounting methods elected to be followed by the Company for federal and state, income tax.purposes. The books and records of the Company must reflect all Company transactions and must be appropriate and adequate for the Company's business. The fiscal year of the Company for financial reporting and for federal income tax purposes is the calendar year. Access to Accounting Record's 20.03. All books and records of the Company must be maintained at any office of the Company or at the Company's principal place of business, and each Member, and his or her duly authorized representative, must have access to them at the office of the Company and the right to inspect and copy them at reasonable times. M Central Basic Operating Agreement Page 14 of 18 E� ................................................ ............ ............ 291946 Annual and Tax Information 20.04. The Members must use their best efforts to cause the Company to deliver to each Member, within thirty days after the end of each fiscal year, all information necessary for the preparation of each Member's federal income tax return. The Members must also use their best efforts to cause the.Company to prepare, within sixty days after the end of each fiscal year, a financial report of the Company for the fiscal year, which must contain a balance sheet as of the last day of the year then ended, an income statement for the year then ended, a statement of sources and applications of funds, and a statement of reconciliation of the capital accounts of the Members. ARTICLE 21. DISSOLUTION AND WINDING UP OF COMPANY Events Causing Dissolution 21.01. The Company shall be dissolved, its assets shall be disposed of, and its affairs shall be wound up on the first to occur of the following events: (a) A determination by members owning more than 50 percent of the interests in the Company that the, Company should be dissolved. (b) The expiration of the Company term, as stated in the Articles. (c) On the death, insanity, bankruptcy, retirement, resignation, or expulsion of any Member unless at least 50 percent of the remaining Members consent to continue the Company within 90 days of the dissolution event. (d)At any earlier time as may be provided by applicable law. Persons Who May Conduct Winding Up 21.02 (a) The Members who have not wrongfully dissolved the Company may wind up the Company's affairs. The persons winding up the affairs of the Company shall give written notice of the commencement of winding up by mail to all known creditors and claimants whose addresses appear on the records of the Company. (b) The Members winding up the Company's affairs shall be entitled to reasonable compensation. Distribution of Assets After Provision for Payment of Creditors. M Central Usle Operating Agreement page IS Of is x-91946 4 21.03 (a) After determining that all the nown;debts and liabilities of the Company including, without limitation, debts and liabilities to Members who are creditors of the Company, have been paid or adequately provided for, the remaining assets shall be distributed among the Membersaccording to their respective rights and preferences as follows: (1) To members in satisfaction of liabilities for distributions pursuant to Corporations Code Sections 17201, 17202, or 17255. (2) To'Members for the return of their contributions. (3) To Members in the proportions in which those Members share in distributions. (b) The payment of a debt or liability, whether the whereabouts of the creditor is known or unknown, has been adequately provided for if the payment has been provided for by either of the following means: (1) Payment thereof has been assumed or guaranteed in good faith by one or more financially responsible persons or by the 'United States government or any agency thereof, and the provision, including the financial responsibility of the person, was determined in goof faith and with reasonable care by the Members to be adequate'at the time of any distribution of the Company's assets pursuant to this Paragraph 24.03. (2) The amount of the debt or liability has been deposited with the Controller of the State of California pursuant to Corporations Code Section 2008. ARTICLE 22. MISCELLANEOUS PROVISIONS' Complete Agreement 22.01.` This Agreement and the Articles of this Company constitute the complete and exclusive statement of agreement among the members with respect to the subject matter described. This Agreement and the Articles replace and supersede all prior agreements by ,and among any of the Members. This Agreement and the Articles supersede all prior written and oral statements; no representation, statement, or condition or warranty not contained in this Agreement or the Articles is binding on the members or has any force or,,effect. Governing Law M Central Basic Operating Agreement Page 16 of i8 I� ; 29194b 22M. This Agreement and the rights.of the parties under this Agreement will be governed by, interpreted, and enforced in accordance with the laws of the State of California. Binding Effect 22.03. Subject to the provisions of this Agreement relating to transferability, this Agreement is binding on and inures to the benefit of the Members, and their respective distributees, successors, and assigns. Severability 22.04. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under the present or future laws effective during the term ofthis Agreement, the provision is fully severable, this Agreement is construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this agreement; and the remaining provisions of this Agreement will remain in full force and effect and will not be affected'by the illegal, invalid,:.or unenforceable prevision; and there will be added automatically as a part of this. Agreement a provision as similar in terms to the illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. M Central Begle Operatiry Agreement Page it Of is I� .291946 Multiple Counterparts 22.05. This Agreement may be executed in several counterparts, each of which is deemed an original but all of which constitute one and the same instrument. However, in making proof Only one copy signed by the party to be charged is required. Additional documents and Acts 22.06. Each Member agrees to execute and deliver additional documents and instruments and to perform all additional acts necessary or appropriate to effectuate, carry out, and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by it. No Third Party Beneficiary 22.07. This Agreement is made solely and specifically among and for the benefit of the parties to it, and their respective successors and assigns, subject to the express previsions of the agreement relating to successors and assigns,.and no other person has or will have any rights, interest, or claims under this Agreement as a third-partybeneficiary or otherwise. Tax Consequences 22.08. Members acknowledge that the tax consequence of each Member's investment in the Company is dependent on each Member's particular financial circumstances. Each Member will rely solely on the Member's financial advisors and not the Company. The Company makes no warranties as to the tax benefits' that the Members receive or will receive as a result of the Member's investment in the Company. Notices 22.09. Any notice to be given.or to be served on the Company or any party to this Agreement in connection with this Agreement must be in writing and is deemed to have been given and received'when delivered to the address specified by the panty to receive the notice. Notices must be given to each Member at the address specified in Exhibit A. Any Member or the Company may, at any time, designate any other address in substitution of the foregoing address by giving written notice to the other Members and the Company.' Amendments M Central Music Operating Agreement Page 181 of 18 -:ri9 4+f 22.10. Any provision of this Agreement may be amended only with affirmative vote of the number of Members that would be required to approve the action authorized by the provision prior to its amendment. All amendments to this Agreement must be in writing and signed by all of the Members. Title to Company Property 22.11. Legal title to all property of the Company must be held and conveyed in the name of the Company. Reliance on Authority of Person Signing Agreement 22.12. In the event that a Member is not a natural person, neither the Company nor any Member will (1)be required to determine the authority of the individual signing this agreement to make any commitment or undertaking on behalf of the entity or to determine any fact or circumstance bearing on the existence of the authority of the individual, or(2) be required to see to the application or distribution of proceeds paid or credited to individuals signing this Agreement on behalf of the entity. IN WITNESS WHEREOF, the undersigned have executed this Agreement, to be effective as of the date of the Articles of Organization of the Company are accepting for fling by the Secretary of State. fJ t?ated. 9126101 Lester B. Finkel And Dalorie Findkel Trustees of tfe Finckel Family Trust Dated: ' Adele Mendel so M Central Basic Operating'Agreement Page IS of 19 291946 Exhibit A NAME CAPITALPERCENTAGE SHARE CONTRIBUTION Lester Finckel and Dalorie Finckel $ 50.0% Trustees of the Finckel Family Trust 2 St.James Drive Piedrnant CA 94611 Adele'Mendelsohn $ 50.0% 5 Van Ripper Larne Orinda CA 94563 Dated: Aa,� � � ;i'.ZC.� Lestar B. 'Finikel a d'Dalorie Finytkel Trustees of the Finckel Family Trust Dated: 911AlLfC6� CIS 10 Adele Mendels" M Central Basic Operating Agreement Page 20 of 18 pr l�